Hari Shankar Paliwal vs Om Prakash and Others

Rohit Arya, J.—This appeal by the plaintiff u/s 100 CPC is directed against the judgment and decree dated 27/02/2006 passed in civil appeal No. 131A/2004 by II Additional District Judge (Fast Track), Sheopur District Sheopur whereby the judgment and decree dated 30/10/2004 passed in civil suit No. 2A/2001 (Hari Shankar Vs. Nagar Palika and others) by I Civil Judge, Class-I, Sheopur, allowing plaintiff''s suit for declaration and permanent injunction has been partially set aside.

Facts necessary for disposal of this appeal are to the effect that one Sitaram owned house No. 41, Ward No. 10, Ganesh Gali, Sheopurkalan (hereinafter referred to as ''the suit house''). Sitaram is stated to have died on 22/04/1960 and succeeded by his three sons, viz., plaintiff, Hari Shankar, defendant No. 2 Vijay Shankar (since dead) and defendant No. 4 Gordhanlal and, therefore, they became joint owners and in joint possession of the suit house. In fact, the change of name in the municipal record was required to be made substituting the name of all three sons in place of Sitaram., as the plaintiff Hari Shankar and Gordhanlal are in service and lived in the State of Rajasthan, Vijay Shankar and his son, Om Prakash have been looking after the house in their absence. Vijay Shankr and Om Prakash without notice and without knowledge of the plaintiff, Hari Shankar and Gordhanlal have manipulated their names as successors in the service book of late Sitaram maintained at the Excise department where the deceased had worked as government servant. Plaintiff, Hari Shankar and Gordhanlal have applied for mutation of their names in the municipal record on 17/12/1985 and the same was refused. It has come to the knowledge of the plaintiff that behind back of plaintiff and Gordhanlal, Omprakash has got his name recorded in the municipal record as regards the suit house even without depositing the outstanding dues of the property tax as has been communicated to the plaintiff by the Municipal Council, Sheopur. Under such circumstances, plaintiff has filed a suit for declaration to the effect that plaintiff alongwith Gordhanlal and Vijay Shankar be recorded as successors of the suit house left behind by Sitaram with a prayer that the Municipal Council be directed to refund Rs. 100/- as the same was paid for publication of notice for mutation in the municipal record.

Defendant/Municipal Council has filed written statement. It is denied that the name of Om Prakash has been substituted for Sitaram in the municipal record. Instead, it is asserted that Om Prakash''s name has been recorded in respect of the suit house in the record of Excise department. Further, on objection being raised by Om Prakash, the names of plaintiff and Gordhanlal could not be recorded as owners of the suit house and since the plaintiff deposited Rs. 100/- for publication of notice as required under law, therefore, he is not entitled for refund of the same.

Defendant Gordhanlal has filed written statement and supported the averments made in the plaint.

Defendants'' Vijay Shankar and Om Prakash have filed a joint written statement and denied the plaint allegations. It is asserted that since his (Om Prakash) name has been recorded as owner of the suit house in the service record of the Excise department where late Sitaram had worked, therefore, entitled for change of name in the property register maintained at the Municipal Council and since they are depositing the property tax, no one except Om Prakash has a right to be recorded as owner and in possession of the suit house. With the aforesaid pleadings, prayed for dismissal of the suit.

The trial Court based upon the aforesaid pleadings had framed issues and allowed parties to lead evidence. Trial Court upon critical evaluation of the oral and documentary evidence on record decreed the suit to the effect that the suit house is joint ownership of plaintiff, Hari Shankar, defendant No. 2 Vijay Shankar (since dead) and defendant No. 4 Gordhanlal are real brothers who succeed to the suit house left behind by Sitaram. Being aggrieved thereof, Om Prakash and successor of Vijay Shankar has filed an appeal. The first appellate Court has again re-appreciated the entire evidence on record and recorded a finding that undisputedly, plaintiff Hari Shankar and defendant No. 2 Vijay Shankar (since dead) and defendant No. 4 Gordhanlal are real brothers. Further, the suit house was owned by late Sitaram. The aforesaid three brothers have succeeded late Sitaram and the suit house. The first appellate Court has rejected the theory of partition amongst plaintiff, Hari Shankar, defendant No. 2 Vijay Shankar (since dead) and defendant No. 4 Gordhanlal coined by Om Prakash and the claim that the suit house had fallen to the share of Vijay Shankar as it was without any basis as deposed by Om Prakash without pleadings to that effect in the written statement. It has been further held that taking advantage of the fact that plaintiff, Hari Shankar and defendant, Gordhanlal being away while in service in the State of Rajasthan, the defendant No. 2 and his son, Om Prakash have succeeded in manipulating the record of Excise department for change of their names. It is further held that mere payment of property tax as regards suit house as claimed by defendant, Om Prakash itself would not accrue any title in their favour. First appellate Court has rightly concluded the findings recorded by the trial Court that the suit house is of the joint ownership and in possession of all the three brothers of late Sitaram. First appellate Court has further considered the issue with regard to share of two daughters; Chameli Bai and Pushpa Bai and held entitled for equal share in the suit house in the event the same is partitioned amongst the sons and daughters of late Sitaram. Accordingly, the decree passed by the trial Court has been modified to the extent that in addition to 03 brothers, their two sisters (daughters of late Sitaram) are also entitled for share in the suit house in the event of its partition. Accordingly, each one of them held to be entitled to 1/5th share in the suit house.

Having gone through the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that both the Courts below were justified in decreeing the suit of the plaintiff to be joint owners and in possession, plaintiff Hari Shankar, defendant No. 2 Vijay Shankar (since dead) and defendant No. 4 Gordhanlal and there appears to be no illegality in the judgment of the first appellate Court partially modifying the decree passed by the trial Court to the effect that in addition to shares of three sons of late Sitaram, his two daughters, namely; Chameli Bai and Pushpa Bai shall also be entitled for their shares in the suit house in the event partition takes place. This modification of the decree passed by the trial Court is in accordance with law and in terms of section 8 of the Hindu Succession Act, 1956. Hence, no illegality, much less any perversity is found in the impugned judgments passed by both the Courts below. The entire gamut of matter is in realm of facts. No question of law much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is accordingly dismissed.

Certified copy as per rules.